TM (Zimbabwe) & Ors v Secretary of State for the Home Department

Membership of an enhanced-risk category under country guidance does not itself establish entitlement to asylum. The claimant must show a real and substantial risk of persecution, assessed from all the evidence, including whether the claimant can demonstrate the loyalty which would avert harm.

An adverse credibility finding is not a legal bar to asylum. It may, however, leave no reliable evidential basis for inferring personal risk. Opportunistic sur place activity can found a claim, but its significance depends on whether it is likely to become known and to concern the authorities.

A tribunal cannot conduct a second-stage reconsideration after determining at the first stage that the original decision contained no error of law.

Three Zimbabwean nationals appealed against determinations of the Asylum and Immigration Tribunal dismissing their asylum appeals. The principal issues concerned the application of the country guidance in RN [2008] UKAIT 00083, the effect of adverse credibility findings and the significance of low-level political activity undertaken in the United Kingdom.

KM and TM had remained in the United Kingdom for several years before claiming asylum. Their accounts of persecution in Zimbabwe were substantially rejected, although certain personal characteristics and low-level sur place activities were accepted. The Tribunal concluded that those matters did not establish a personal risk on return.

LZ's original appeal had been determined under the country guidance then in force. On reconsideration, the Tribunal found no error of law but nevertheless considered the later RN guidance. The central issue in her appeal was whether that further consideration had any legal standing.

1. The three appeals were dismissed unanimously. The governing question was whether each claimant had established a real and substantial risk of persecution for a Convention reason. The Court could intervene only for an error of law and was required to respect the factual assessment of the specialist tribunal unless a clear misdirection was shown.

2. Country-guidance determinations must be followed on the issue identified where the later appeal depends on the same or similar evidence. Departure requires good reason, such as fresh evidence casting doubt on the guidance. RN [2008] UKAIT 00083 enlarged the Zimbabwean risk category to persons unable to demonstrate loyalty to Zanu-PF, particularly because of violence by militia groups away from the airport. It did not establish that every failed asylum seeker, former teacher or long-term United Kingdom resident was at real risk. Such characteristics increased scrutiny, but the claimant still had to establish a personal inability to demonstrate the requisite loyalty.

3. An adverse credibility finding does not punish a claimant or legally preclude asylum. The Tribunal must consider whether accepted facts or other evidence establish the claim despite the rejected account. Nevertheless, where false evidence leaves no credible factual basis from which personal risk can be inferred, the claimant has failed to discharge the burden of proof.

4. Political activity undertaken after departure may establish a well-founded fear even where it was opportunistic or pursued in bad faith. The assessment remains whether it is likely to become known and whether the home authorities would regard it as significant. Monitoring of opposition activity does not create a presumption that all low-level activity will be detected. Disclosure and official interest are matters of inference and degree.

5. KM's safe return visits, the slight and opportunistic nature of her political activity, and the absence of relevant difficulties affecting her family provided an evidential basis for finding that she did not cross the risk threshold. TM's accepted characteristics placed her within enhanced-risk categories, but her discredited evidence left no factual basis for finding that she personally could not demonstrate loyalty. The finding that her low-level activity would not come to official attention was open to the Tribunal.

6. The principle in HJ (Iran) [2010] UKSC 31, that a refugee cannot be required to conceal a protected characteristic to avoid persecution, extends beyond sexual orientation. The Court left open whether a person with only marginal political interests may be expected to be less than frank when questioned. The issue did not arise on the established facts.

7. In LZ's case, the first-stage determination that the original tribunal had made no error of law exhausted the reconsideration jurisdiction. The Tribunal could not confer jurisdiction on itself by proceeding to assess RN, and that assessment had no legal standing. Any material change in Zimbabwe could support a fresh application to the Secretary of State, but not an unauthorised second-stage reconsideration.

1. Court of Appeal (Civil Division): Dismissed all three appeals. It upheld the Tribunal's risk assessments in KM and TM and held that the purported second-stage reconsideration in LZ lacked jurisdiction.
2. Asylum and Immigration Tribunal—KM: Following an identified error of law and a de novo second-stage reconsideration, dismissed the asylum appeal.
3. Asylum and Immigration Tribunal—TM: On a second-stage reconsideration limited to future risk, preserved the earlier factual findings and dismissed the asylum appeal.
4. Asylum and Immigration Tribunal—LZ: Found no error of law in the original determination but nevertheless considered the later country guidance. That further assessment was held by this court to have no legal standing.